1. A decision of the trial court does not become a final decision until the period for
appeal has run and the case has not been appealed or, alternatively, the case has been
appealed and finally adjudicated.

2. Failure of an appellee to cross-appeal adverse decisions does not prevent the trial court
from revising its prior orders on remand from an appellate court.

3. In determining finality for application of res judicata or collateral estoppel doctrines,
the court need not apply the same definition of finality for purpose of appeal.

4. A trial court's decision on summary judgment satisfies the final judgment requirement
for purposes of claim preclusion when the parties were fully heard, the decision was
made with a reasoned opinion, and the ruling is subject to appeal or, in fact, was
reviewed on appeal.

Before BRAZIL, C.J., KNUDSON, J., and JAMES P. BUCHELE, District Judge, assigned.

BUCHELE, J.: On July 22, 1990, Patricia Grimmett sustained injuries as the
passenger in a one-car accident. The driver, Michael Burke, hit a light pole while allegedly
driving under the influence of alcohol and/or drugs. On the date of the accident, Burke had
picked up the car from Lewis Toyota in Topeka, Kansas, allegedly to deliver the car to
S & W
Auto Sales Co. (S & W) in Harrisonville, Missouri.

Grimmett filed suit to recover for her injuries against Burke, Lewis Toyota, and
S & W (Grimmett I). S & W filed a motion for
summary judgment, asserting that it had no
liability because it did not have an ownership interest in the car and Burke was not its agent.
The trial court granted S & W's motion for summary judgment. Grimmett filed
a motion to
alter or amend the summary judgment decision, which the trial court denied. On October 1,
1992, Grimmett filed a notice of appeal of the summary judgment decision and order denying
her motion to alter or amend.

On October 26, 1992, the trial court granted Grimmett's motion to voluntarily
dismiss the case (Grimmett I) without prejudice. The appeal of the district court
rulings
granting summary judgment to S & W and denying Grimmett's motion to alter
or amend was
dismissed by the trial court "with prejudice" on S & W's motion on April 6,
1993.

S & W responded to Grimmett II with a motion to dismiss,
asserting that the
summary judgment decision in Grimmett I barred plaintiff from bringing the same
claims in
Grimmett II on the grounds of res judicata. In the alternative,
S & W filed an answer to
Grimmett II. The trial court denied S & W's motion to dismiss,
ruling that its orders
granting S & W summary judgment and denying Grimmett's motion to alter or
amend were
not final orders and, as such, Grimmett's claims against S & W in
Grimmett II were not
barred by the doctrines of res judicata and collateral estoppel. The trial court ultimately
granted S & W's motion for summary judgment on the same grounds as its
order in
Grimmett I and also dismissed or granted summary judgment to the other defendants.
Grimmett appealed. It is important to note that S & W did not cross-appeal the
trial court's
denial of its motion to dismiss asserting the summary judgment granted in Grimmett I
was res
judicata. This court reversed the trial court's decision granting summary judgment to
S & W
and remanded the case for a trial.

We must first consider whether S & W is precluded from reasserting its
res judicata
defense because it failed to cross-appeal the trial court's denial of its motion to dismiss. There
is no direct authority on this question in Kansas.

We begin our analysis with the general rule that a decision of the trial court does not
become a final decision until the period for appeal has run and the case has not been appealed
or the case has been appealed and finally adjudicated. See K.S.A. 60-254(a); Osborn v.
Electric
Corp. of Kansas City, 23 Kan. App. 2d 868, 872, 936 P.2d 297, rev. denied
262 Kan. ___ (1997).
If an appeal is dismissed, the lawsuit has ended. Decisions of the trial court become final and
conclusive unless corrected or modified on appeal. See Wirt v. Esrey, 233 Kan. 300,
308, 662
P.2d 1238 (1983).

A denial of a motion for summary judgment may be reviewed on appeal when asserted
as a cross-appeal. See K.S.A. 60-2103(h). It is, of course, necessary that a cross-appeal be
perfected in order to obtain appellate review of the adverse decision. Vaughn v.
Murray, 214
Kan. 456, 462, 521 P.2d 262 (1974). If no cross-appeal is filed, the trial court's undisturbed
rulings would become a final decision when the case is finally adjudicated. Grimmett argues
that S & W waived its right to raise the issue of res judicata upon remand to the
trial court as
it failed to cross-appeal the trial court's previous denial of that issue.

In Grimmett II, the appellate court did not address the trial court's ruling on
S & W's
motion to dismiss on the issue of res judicata. The trial court's decision granting summary
judgment was reversed, and the case was remanded on other grounds. 21 Kan. App. 2d at
652-53. At that point, the case had not been finally adjudicated and was fully before the trial
court.

The statute which deals with judgments upon multiple claims is K.S.A. 60-254(b).
This statute provides the court with procedural latitude. Until a final judgment is entered,
"the order or other form of decision is subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and liabilities of all the parties." K.S.A.
60-254(b). The trial court retains the inherent power to review its own proceedings to correct
errors or prevent injustices until a final judgment is entered. City of Wichita v. Rice,
20 Kan.
App. 2d 370, 376, 889 P.2d 789 (1995); see generally Speer v. Dighton Grain, Inc.,
229 Kan.
272, 279, 624 P.2d 952 (1981).

We conclude that S & W's failure to assert a cross-appeal does not bar it
from
reasserting its res judicata defense upon remand because a final judgment had not been
entered.

The next question is whether the trial court properly ruled that the summary
judgment decision in Grimmett I was res judicata between the parties in
Grimmett II.
Application of res judicata is a question of law over which this court has plenary review. See
City of Manhattan v. Huncovsky, 22 Kan. App. 2d 189, 191, 913 P.2d 227, rev.
denied 260 Kan.
992 (1996). The Kansas Supreme Court has held that three factors must be present for the
application of res judicata principles: (1) The first suit must have proceeded to a final
judgment on the merits; (2) the parties must be the same or in privity; and (3) the suits
must be based on the same cause of action. Stanfield v. Osborne Industries, Inc., 263
Kan. 388,
397, 949 P.2d 602 (1997). See Lummus Company v. Commonwealth Oil Refining
Company,
297 F.2d 80, 89 (2d Cir. 1961), cert. denied 368 U.S. 986 (1962) (quoting
Comm'rs of Wilson Co.
v. McIntosh, 30 Kan. 234, 238, 1 Pac. 572 [1883]). "[A] question once clearly and fully
decided
with right of special and separate review may be res adjudicata, even though such
decision was
only an order upon a motion." 30 Kan. at 240.

The Restatement (Second) of Judgments adopted the holding of Lummus,
suggesting
that unless a judgment is avowedly tentative, the preclusive effect of a judgment should be
determined by considering: (1) whether the parties were fully heard, (2) whether the court
supported its decision with a reasoned opinion, and (3) whether the decision was subject to
appeal or, in fact, reviewed on appeal. Restatement (Second) of Judgments § 13,
comment g
(1980).

Clearly, plaintiff's claims in Grimmett I and Grimmett II were
based on the same
automobile accident and involved the same parties. In Grimmett I, the issue of
S & W's
liability was conclusively determined by the trial court as evidenced by the court's denial of
Grimmett's motion to alter or amend the summary judgment decision. In making its
decision, the trial court provided a well-reasoned opinion articulating the uncontroverted
facts and their associated legal conclusions. The parties filed memorandums in support of
their positions and made oral arguments at a hearing on the summary judgment motion,
demonstrating the opportunity to fully litigate the issue. Grimmett filed a notice of appeal
for the summary judgment decision in Grimmett I. Although the trial court dismissed
the
appeal with prejudice on S & W's motion, it was because Grimmett failed to
prosecute the
appeal.

We believe that preclusion doctrines should be applied when a party voluntarily
dismisses a case after an adverse ruling has been made on a summary judgment motion.
Summary judgment procedure, at least from the defendant's point of view, would become a
virtual nullity if plaintiffs could obtain "overs" by dismissing and refiling a case rather than
fully litigating an adverse summary judgment decision through the appellate process. See
Wong, 961 F.2d at 1020.

The Kansas Supreme Court in Stanfield, 263 Kan. at 396, found that Kansas
law does
not appear to differ significantly from the federal law regarding preclusion doctrines. Those
principles have been stated by the United States Supreme Court in Allen v. McCurry,
449 U.S.
90, 94, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980):

"'The federal courts have traditionally adhered to the related doctrines of res judicata and
collateral
estoppel. Under res judicata [or claim preclusion], a final judgment on the merits of an action
precludes the
parties or their privies from relitigating issues [or claims] that were or could have been raised in
that action.
Cromwell v. County of Sac, 94 U.S. 351, 352[, 24 L. Ed. 195 (1876)]. Under
collateral estoppel [or issue
preclusion], once a court has decided an issue of fact or law necessary to its judgment, that
decision may
preclude relitigation of the issue in a suit on a different cause of action involving a party to the
first case.
Montana v. United States, 440 U.S. 147, 153[, 59 L. Ed. 2d 210, 99 S. Ct. 970
(1979)].' 449 U.S. at 94.

"'The general principle announced in numerous cases [regarding issue preclusion] is that a
right,
question, or fact distinctly put in issue and directly determined by a court of competent
jurisdiction as a ground
of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and
even if the
second suit is for a different cause of action, the right, question, or fact once so determined must,
as between the
same parties or their privies, be taken as conclusively established, so long as the judgment in the
first suit
remains unmodified. This general rule is demanded by the very object for which civil courts have
been
established, which is to secure the peace and repose of society by the settlement of matters
capable of judicial
determination. Its enforcement is essential to the maintenance of social order; for, the aid of
judicial tribunals
would not be invoked for the vindication of rights of person and property, if, as between parties
and their
privies, conclusiveness did not attend the judgments of such tribunals in respect of all matters
properly put in
issue, and actually determined by them.' Southern Pacific Railr'd v. United States,
168 U.S. 1, 48-49, 42 L. Ed.
355, 18 S. Ct. 18 (1897)." 263 Kan. at 396-97.

Federal courts treat summary judgment as a judgment on the merits. 263 Kan. at 400.
And federal courts recognize that courts need not apply the same definition of finality in
applying preclusion doctrines as for appeal. 18 Wright, Miller & Cooper, Federal Practice
and Procedure: Res Judicata § 4434 (1981).

A distinction can be made for different definitions for the finality requirement based
upon public policy considerations that support res judicata and the single appeal rule. Res
judicata is intended to protect parties from the cost and vexation of multiple suits on the same
claim. The single appeal rule, on the other hand, was designed to discourage the piecemeal
review of an action. Because the underlying purposes of the two are vastly different, finality
need not be defined the same for both. The Kansas Supreme Court recognized in 1883:
"[T]here is a growing disposition to enlarge the scope of the doctrine of res
adjudicata, and to
place more regard on the substance of the decision than on the form of the proceedings."
McIntosh, 30 Kan. at 238.

We conclude a trial court's decision on summary judgment satisfies the final judgment
on the merits requirement for purposes of claim preclusion when the parties were fully heard,
the decision is made with a reasoned opinion, and the ruling is subject to appeal or, in fact,
reviewed on appeal. See Restatement (Second) of Judgments § 13, comment g
(1980);
McIntosh, 30 Kan. at 239. Although interlocutory when rendered, the trial court's
decision
became final when the appeal was dismissed.

We are mindful that our decision here has the effect of reinstating a trial court decision
that was reversed by this court. But, in Grimmett I, plaintiff had her day in court and
the
opportunity to pursue an appeal. For whatever reasons, she abandoned it. Voluntary
dismissal and refiling a claim after an adverse ruling should not give a losing party a "fresh
start" or "second opinion." Failure to fully litigate, including appeal, should be construed as
an acquiescence to the court's decisions. The general rule which provides that once a party
has contested an issue the parties are bound by the result of the contest and that matters once
tried shall be forever settled between the parties should prevail. As the United States
Supreme Court stated over 65 years ago:

"The predicament in which respondent finds himself is of his own making . . . . [W]e
cannot be
expected, for his sole relief, to upset the general and well-established doctrine of res
judicata, conceived in the
light of the maxim that the interest of the state requires that there be an end to litigation--a maxim
which
comports with common sense as well as public policy. And the mischief which would follow the
establishment
of a precedent for so disregarding this salutary doctrine against prolonging strife would be greater
than the
benefit which would result from relieving some case of individual hardship. [Citation omitted.]"
Reed v. Allen,
286 U.S. 191, 198-99, 76 L. Ed. 1054, 52 S. Ct. 532 (1932).